Modification: People v. Perez

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE LUIS PEREZ et al.,

Defendants and Appellants.

No. E060438

(Super. Ct. No. FVI901482)

California Courts of Appeal

Fourth Appellate District

Division Two

Filed May 9, 2018

The opinion filed in this matter on April 12, 2018 is modified as follows:

1. On page 48, delete the paragraph:

We assume, without deciding, that counsel for Sandoval and Chavez did not forfeit their clients' present contention.

and replace it with:

1. Forfeiture.

Counsel for Sandoval objected based on speculation. Counsel for Chavez expressly joined this objection. Perez's counsel did not. However, the trial court told him, "I'm going to assume you join in that objection . . . ." He could reasonably conclude that he did not have to do anything further to preserve the objection on behalf of his client.

In this appeal, defendants argue that this was tantamount to a relevance objection, because the testimony of a witness who is speculating has no "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210; see also 1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th ed. 2018) § 28.56, p. 28-35.) Defendants' present argument, however, is not that the evidence was irrelevant because Iniguez was speculating about why he was attacked, but rather that the evidence was irrelevant to Iniguez's "attitude toward testifying." The speculation objection failed to preserve this argument.

Counsel for Chavez also requested "clarification" that his client did not "directly" attack Iniguez. The trial court observed, in open court, that there was no evidence to that effect. Moreover, Iniguez proceeded to testify that defendants did not physically participate in the attack. This objection, too, failed to preserve defendants' present argument.

Hence, we conclude that this argument has been forfeited.

2. Merits.

Separately and alternatively, we also reject this argument on the merits.

3. On page 81, delete all of section XVIII.B.1, entitled "Forfeiture."

4. On page 82, delete the subheading:

2. Merits.

5. On page 82, delete the paragraph:

Separately and alternatively, we also reject this contention on the merits.

and substitute the paragraph:

We assume, without deciding, that counsel for Sandoval and Chavez did not forfeit their clients' present contention.

Except for this modification, the opinion remains unchanged. This modification does not effect a change in the judgment.

Appellant Chavez's petition for rehearing is denied.

CERTIFIED FOR PARTIAL PUBLICATION

RAMIREZ, P. J.